Copyright Infringement: may not feel illegal but it is Reply

Three truths about copyright infringement:copyright

  • Making bootlegged copies of copyrighted movies available online for other folks to download and stream is a crime: copyright infringement
  • The Motion Picture Association of America and other associations, artists and content owners spend time and money tracking down folks who are infringing their copyright
  • Comments posted to an online forum acknowledging copyright infringement can be incriminating (despite a gleeful or playful tone).

According to a recent article in the NY Times, one of the founders of NinjaVideo served 16 months in prison for conspiracy and criminal copyright infringement. For more details on the NinjaVideo story, see the NY Times Article titled, “The Unrepentant Bootlegger” by Jenna Wortham on 9/28/14.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

@iplegalfreebies and www.kasterlegal.com.

Inheriting Copyright – Who is Vivian Maier’s closest living relative? Reply

Copyright can be inherited and passed onto heirs just like other assets and property.  For example, the copyright in books, plays, music, photographs, speeches and other original, copyrighted and copyrightable materials may be bequeathed by will or pass at the death of the copyright owner as personal property by the applicable laws of intestate succession.   (Copyright does extend beyond the death of the author, photographer, playwright or creator of the work for a limited term – often life of the author plus 70 years).

Vivian Maier, self portrait

Vivian Maier, self portrait

As per a recent article in The New York Times, a court battle over the copyright to the recently discovered photographs taken by the deceased photographer Vivian Maier has begun.  Evidently, the young entrepreneur who has begun promoting, printing, displaying and using Vivian Maier’s photographs (after purchasing boxes of Vivian Maier’s negatives at auction) may not have tracked down, gotten permission from and paid the appropriate heir/s of Vivian Maier.  Who is Vivian Maier’s closest living relative?  This question will be key to the litigation.

This scenario of determining who the closest living relative is to a deceased creator (whose creative work was secret or unknown during their lifetime) may become more common now that the internet can be used as a fast and easy way to disseminate creative content and generate an online following and market for previously unknown works.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: The New York Times article titled, The Heir’s Not Apparent, by Randy Kennedy on 9/6/2014; U.S. Copyright Office Circular 12 titled, Recordation of Transfers and other Documents at http://copyright.gov/circs/circ12.pdf; U.S. Copyright Office Circular 15a titled, Duration of Copyright at http://www.copyright.gov/circs/circ15a.pdf; @iplegalfreebies and www.kasterlegal.com.

Reporting Copyright Infringement Claims to Facebook Reply

If someone infringes your copyright by posting your copyrighted photograph to Facebook without your copyrightpermission, it is possible to request that Facebook remove the photograph. The Terms of Use on Facebook’s website lists the steps, protocol and ways to make a claim of copyright infringement and request the infringing use of your photograph be removed. (Note, most social media sites have similar protocol for this outlined in their Terms which are usually posted via a link at the bottom of the webpage).

Here is some useful information from Facebook’s Terms of Use regarding the steps, protocol and ways to report copyright infringement and make the request to have a photograph (or other copyrighted material) removed if it is infringing (ie posted without permission and is infringing your copyright).

What should I include when submitting a report to Facebook alleging infringement of my copyright?

The fastest and easiest way to submit a claim of copyright infringement to us is to use our online form. It may be required by law that you include the following information:

  • Your complete contact information (full name, mailing address and phone number). Note that we regularly provide your contact information, including your name and email address, the name of your organization or client who owns the right in question, and/or the contents of your report to the person who posted the content you are reporting. You may wish to provide a professional or business email address for contact by users.
  • A description of the copyrighted work that you claim has been infringed.
  • A description of the content on our site that you claim infringes your copyright.
  • Information reasonably sufficient to permit us to locate the material on our site. The easiest way to do this is by providing web addresses (URLs) leading directly to the allegedly infringing content.
  • A declaration that
    1. You have a good faith belief that use of the copyrighted content described above, in the manner you have complained of, is not authorized by the copyright owner, its agent, or the law,
    2. The information in your notice is accurate, and
    3. You declare, under penalty of perjury, that you are the owner or authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed.
  • Your electronic signature or physical signature.

How do I report a claim of copyright infringement?

Submitting a claim of copyright infringement is a serious matter with legal consequences. Before you report a claim of copyright infringement to us, you may wish to reach out to the individual posting the content. You may be able to resolve the issue simply by bringing it to their attention without contacting Facebook at all.

If you are unsure whether the content you are reporting is infringing your legal rights, you may wish to seek legal guidance. Keep in mind that submitting intentionally misleading reports of infringement may be punishable under the Digital Millennium Copyright Act (DMCA) in the United States or similar laws in other countries.

If you believe your copyright is being infringed, the fastest and easiest way to report that to us is to use our online form. Alternatively, you can choose to use traditional (and slower) methods, such as mail, to contact our designated agent. In that case, you will need to ensure you include all elements of a complete copyright claim in your report.

Note: You do not need a Facebook account to submit a report.

However, if you or someone else has posted the photograph to Facebook with permission, and other folks are re-posting and using the photograph on Facebook this is a different situation and may not be an infringement of the copyrighted photograph.  (More on this topic is available in an earlier post at http://wp.me/p10nNq-ni  and in Facebook’s Terms of Use).

This post was inspired by a question that I was asked on a recent visit to the LA Photographic Club – thank you for inviting me to join y’all and welcoming me as your guest.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: More posts on the topic of copyright in photographs; Reporting Copyright Infringements on Facebook at https://www.facebook.com/help/231463960277847 and https://www.facebook.com/help/400287850027717/; Section 5 of Facebook’s Terms of Use lists terms relating to “Protecting other People’s Rights” at https://www.facebook.com/legal/terms?ref=pf; @iplegalfreebies and www.kasterlegal.com.

Using my photo? Did I inadvertently give rights away by posting it online? Reply

It’s so easy and fun to share photographs online that folks often give away rights to their photographs without even realizing it.  HOW DOES THIS HAPPEN?  The terms, conditions and licenses that the photographer agrees to when posting a photograph to various social media and photo-sharing websites often grant other folks broad rights to use posted photographs.  Keep in mind that every social media and photo-sharing website has different terms, conditions and licenses that are agreed to automatically simply by USING the website and POSTING photographs and other content.  These terms, conditions and licenses are modified and updated frequently.

teen's flicker photo

Photo: Justin Ho-Wee Wong

Here is an interesting and fairly haunting example:  A photograph of a teenager was taken by her youth counselor and posted to his to Flickr account under a broad Creative Commons license that allowed others to use his work in any way, including for commercial purposes, if they credited the photographer. (See the inserted photo).  A slightly edited version of the photograph ended up in an advertising campaign for Virgin Mobil Australia. A lawsuit followed.

THE TAKE AWAY: Read the terms, conditions and licenses that you are agreeing to when using and posting photographs and other content to social media and photo-sharing websites.  Most popular social media and photo-sharing websites, including FACEBOOKPINTEREST and TWITTER have fairly broad terms, conditions and licenses that change frequently.  Websites post their terms, usually at the bottom of the webpage. These same terms that often give other folks broad rights to use posted content,  also contain the steps to follow if your photographs or other content are being used without your permission on the site and you want to request that it be taken down.

This post was inspired by my friend Mel and a host of social media comments about a photograph that ended up on a series of KEEP CALM shirts.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: Articles about the Virgin Mobil example above from the Sydney Morning Herald and The New York Times; photo of a Virgin Mobil Ad; Flickr’s Creative Commons licenses at https://www.flickr.com/creativecommons/; other blog posts on photo copyright at http://iplegalfreebies.wordpress.com/category/copyright-photos; @iplegalfreebies and www.kasterlegal.com.

Trademark: to keep bands called THE SUPREMES from popping up in every State Reply

“Yeah, I know and can appreciate what you do (as a trademark attorney working with musicians). Back in the day, different bands called THE SUPREMES were popping up in every State. You can’t have that.” A jazz musician friend said this to me the other day and it was music to my ears.

from the USPTO online database

from the USPTO online database

This is right on point. For a band like THE SUPREMES, who became the most popular female group of the Sixties, owning the trademark of their name grants the trademark owner (Motown Records and now Motown Records’ successor) the exclusive right to use the name “THE SUPREMES” for various music performance and recording services. [USPTO Reg. No. 1003076]. Owning the trademark rights in the name of your band grants the trademark owner the exclusive right to use the trademarked band name for specific uses – like music performance and recording services. This can be a tool to keep other bands or music groups from performing under the same name or a confusingly similar name without permission of the trademark owner.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: the USPTO TESS data base at http://www.uspto.gov/; a copy of the USPTO Certificate of Trademark Registration for THE SUPREMES, USPTO Reg. No. 1003076; The Supremes bio at http://rockhall.com/inductees/the-supremes/ ; Baby Love on YouTube at http://www.youtube.com/watch?v=23UkIkwy5ZM; @iplegalfreebies and www.kasterlegal.com.

WORLD CUP – National Teams & Big Brands out on the field Reply

While watching the US play Ghana yesterday in the World Cup, I couldn’t help but notice that in soccer ballsaddition to the rivalry between the two national teams on the field… there was also a competition between famous brands on the field too.  Adidas, Nike and Puma were the three famous brands and trademarks that I noticed all over the field, players, officials, equipment and gear.  Adidas trademarks were on the game ball, officials and frequently appeared on the stadium’s sidewall advertising. Nike’s swoosh trademark was on the US jerseys and many cleats.  Puma’s leaping-cat trademark was prominently featured on Ghana’s jerseys.

Adidas, Nike and Puma are all famous brands.  Nike owns nearly 300 USPTO trademarks including their famous swoosh.  Adidas owns close to 150 USPTO trademarks including their famous three stripes.  Puma also owns many USPTO trademarks featuring its leaping cat.

Flashing trademarks out on the field, and World Cup endorsements is big business.  According to a recent Bloomberg Businessweek article, Nike is the largest sportswear company in the world, with $25 billion in revenue.  Adidas (based in Germany) is a close second with $20 billion in revenue. Combined, these two brands control 70 % of the market for soccer gear.  Soccer is a big focus for Adidas and the brand has a long history with soccer sponsorship, including sponsoring FIFA since 1970.  Nike joined the soccer sponsorship game more recently in 1994 when the US hosted the World Cup.

Enjoy watching the rivalries play out during the World Cup this summer!  National Teams (and the sponsoring brands) will be giving it their all.

Great game last night. Thrilling 2-1 victory by the US over Ghana.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also FIFA stats on the US v Ghana game at http://www.fifa.com/worldcup/matches/round=255931/match=300186512/index.html#nosticky; the USPTO TESS data base at http://www.uspto.gov/; Bloomberg Businessweek article by Brendan Greeley, titled “Shootout Can Nike Beat Adidas at Soccer?”; Scores online at http://www.fifa.com/worldcup/index.html and http://msn.foxsports.com/soccer/schedule?competition=12&season=2014; @iplegalfreebies and www.kasterlegal.com.

Meet .NYC – the new domain for New Yorkers Reply

A new class of generic top-level domains (gTLDs) is rolling out, including “.nyc”!  This is a new domain for New Yorkers.  Here is a bit of information about the new .nyc domain from the official website: http://www.nic.nyc/about/ 

Who Will Own .nyc?

  • Any New Yorker whose work, ideas and creativity are based in the City.
  • Locals who provide services, products or content to fellow New Yorkers.
  • Companies, organizations and individuals wishing to showcase the value of their location online.

When can I register a .nyc domain name?

It is currently expected that .nyc will launch as early as May 2014, with phasing as follows.

PHASE 1 (May 2014): Trademarks Sunrise (45 days – ending June 20, 2014)

Sunrise is an initial period designed to protect intellectual property rights holders: those with registered trademarks. Trademark owners can take advantage of the Sunrise phase to safeguard the domain name that matches their trademark. As required by ICANN, all trademark owners must have their marks validated and registered in the Trademark Clearinghouse as a minimum requirement if they wish to register during Sunrise. Submit a trademark to the Clearinghouse at: http://trademark-clearinghouse.com.  After marks are registered with the Trademark Clearinghouse, registered trademark owners may apply for their own .nyc web address at: http://www.nic.nyc/trademarks.  The steps for priority registration for registered trademark owners are outlined here: http://www.trademark-clearinghouse.com/content/nyc-priority-registration-trademark-holders?utm_source=.NYC&utm_medium=clickthrough&utm_campaign=NYCSunrise

Learn more about the Trademark Clearinghouse on ICANN’s website: http://newgtlds.icann.org/en/about/trademark-clearinghouse

If there is more than one qualified trademark holder applying for the same domain name, an auction will be held to determine the registrant.

PHASE 2 (June/July 2014): City Government-Affiliated Reserve List (30 days) / Sunrise Auctions

During this phase, City government and government-affiliated .nyc entities will have the right to register .NYC domains through a City-designated single point of contact that will authenticate eligibility.

PHASE 3 (August/September 2014): Landrush (60 days)

All businesses, organizations and residents with a physical address in the City will have an equal opportunity to register .nyc domains during the Landrush phase. There will be a slightly higher fee for registrations occurring during the Landrush phase. If there is only one application for a .nyc domain name during this period, the applicant for that name will be granted the registration. If there are multiple applications for a domain name during this period, however, an auction will be held to determine the registrant after completion of the Landrush period.

PHASE 4 (October 2014): General Availability

After the Landrush phase, all businesses, organizations and residents with a physical address in the City of New York shall be entitled to register .nyc domain names in real-time on a first-come, first-served basis. For the first ninety (90) days of General Availability, in the event that a domain name registrant applied for a domain name that is an exact match of a trademark appearing in the Trademark Clearinghouse, the registrant will receive a notice about that trademark during the registration process and asked whether or not it wishes to proceed with the registration. If it does, the name will proceed to registration, but may subsequently be challenged by the Trademark owner through an ICANN dispute resolution procedure if the name is likely to cause confusion with the trademark.

For more information see the Official Website at http://www.nic.nyc/  and http://www.nic.nyc/trademarks/.  For folks outside of NYC, a new generic top-level domain may be launching in your area too.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

One can love chicken & Bob Marley tunes (ONE LOVE trademark dispute settles) 2

The ONE LOVE trademark dispute between Bob Marley’s estate and Raising Cane’s tess picchicken finger restaurant raises some interesting trademark and copyright issues. According to Louisiana newspapers, the trademark dispute recently settled on undisclosed terms; however, the issue at the heart of the dispute is interesting.

THE ISSUE: Trademarking someone else’s song title for restaurant services.

THE STORY: In 2005, Raising Cane’s chicken finger restaurant obtained a USPTO registered trademark for ONE LOVE to be used to sell “restaurant services” (Reg. No. 3033511).  This same phrase ONE LOVE is part of the title and refrain to the famous Bob Marley tune, “One Love/People Get Ready,” recorded with his band The Wailers.  In 2007, Marley’s estate (represented by Fifty-Six Hope Road Music) applied for a USPTO trademark registration for ONE LOVE for “hotel, bar, and restaurant services” but was refused trademark registration because of the pre-existing ONE LOVE trademark registered to Raising Cane’s for similar services.  (A likelihood-of-confusion refusal).  The dispute escalated, the courts became involved and evidently the parties recently settled on undisclosed terms.

THE SCOOP: As demonstrated by this series of events, the title of a song will not necessarily block or cancel a USPTO trademark application or registration.  Songs and original music are protected by copyright laws; however, copyright protection does not extend to short phrases and titles.  The USPTO trademark registration system is available for protecting short phrases.  Timing of a USPTO application is also a determinative factor.  For example, if Bob Marley’s estate had applied for a ONE LOVE trademark to be used with restaurant and related services BEFORE Raising Cane’s applied for it, then the outcome would likely be reversed and Marley’s estate would have blocked Raising Cane’s trademark application.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: “One Love” dispute transfer order at http://www.scribd.com/doc/206584538/One-Love-dispute-transfer-order; an earlier blog post: Title Copycats; News articles: Raising Cane’s, Bob Marley estate reach agreement by Joe Gyan Jr, Bob Marley’s estate’s legal saga over Raising Cane’s ‘One Love’ to play out in Louisiana by Emily Lane on 2/11/14, and Raising Cane’s, Bob Marley’s estate settle ‘One Love’ slogan dispute by Diana Samuels on 5/23/14; the USPTO trademark search at http://www.uspto.gov/ @iplegalfreebies and www.kasterlegal.com.

Imitating Others On Social Media Reply

photo(2)Social media sites generally frown upon users who imitate others and list impersonation as a no-no within their Terms Of Use and Privacy Policy.  By using, joining or registering with a social media site, folks “agree to” and “accept” the terms and policies of the social media site.  Note, that the terms and policies of a social media site (that you should, although, may have never read) apply merely by the simple act of using the site, joining or registering.

Imbedded within these terms and policies are several common elements that relate to impersonation and the treatment of imitators.  Often, these are listed as things that a user is permitted to do and not do.  “Shall not” language is commonly used in these lists (perhaps modeled off the Ten Commandments).  Here are a few examples:

THOU SHALT NOT (as per terms and policies of various social media sites):

  • provide any false personal information on Facebook, or create an account for anyone other than yourself without permission [excerpt from Facebook's Statement of Rights and Responsibilities]
  • create any account for anyone other than yourself without such person’s permission [excerpt from Foursquare's Terms Of Use]
  • use a User Name that is the name of another person with the intent to impersonate that person [excerpt from Foursquare's Terms Of Use]
  • post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law [excerpt from Facebook's Statement of Rights and Responsibilities]
  • upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Submission, that:
    • infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
    • you know is false, misleading, untruthful or inaccurate;
    • impersonates any person or entity, including any employee or representative of Foursquare  [excerpt from Foursquare's Terms Of Use]

These are short, illustrative excerpts from the Terms and Policies currently posted on the Facebook and Foursquare sites.  The Terms and Policies also include information on how to report imitators.  Generally, a valid imitation claim will result in the imitator being removed from the site and possibly forfeiting other privileges and use of the site as well.  While Terms and Policies are subject to change, discouraging imitation will likely remain standard protocol.  Social media sites have a vested interest in discouraging imitators on their sites, because, this keeps their sites user friendly for original celebrity users.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

The Terms of Use and Privacy Policy for various social media sites can generally be found with a Google Search or are available on the social media site, often at the bottom on the login page. 

See also: a related post on What to do if someone is using your stuff on social media sites; The Terms of Use and How to Report Claims of Intellectual Property Infringement posted on Facebook at https://www.facebook.com/legal/terms and https://www.facebook.com/help/www/39922488347420; @iplegalfreebies and www.kasterlegal.com.

 

How to use the trademark & copyright symbols: ®, TM, SM, © Reply

The ® Registered Trademark Symbol

Once a trademark is federally registered with the USPTO (US Patent & Trademark Office), the coveted ® symbol can be used. While use of the ® symbol is not required, it is highly recommend. Using the ® symbol lends credibility to a registered mark.  Additionally, it puts potential infringers on notice of the trademark owner’s rights and makes it easier for the trademark owner to collect certain damages in the event someone infringes these rights.

The TM and SM Trademark Symbolsphoto (1)

The TM and SM symbols can be used with an unregistered trademark or service mark to inform the public that a word mark, logo, or design mark is being used as a trademark and that the owner of the mark claims rights to it.  Using either of these symbols gives notice that the mark owner is intentionally establishing ‘common law trademark rights’ in the mark. For example:  MY TRADEMARK ™  or MY SERVICE MARK ℠    (For more information on how to use the TM or SM symbols click here).

The © Copyright Symbol

Another familiar symbol is the  copyright symbol.  Using the © symbol is an easy way to notify the world that copyright exists in your original, creative work.  While it’s not required by law to use the © to establish copyright in a photograph, piece of music or other original work, it’s simple to do and could save you a lot of headache down the road.  Use of the the © copyright symbol does not require permission from, or registration with the US Copyright Office.  (For more information on how to write a © copyright notice click here).

Many creative works may contain both a trademark symbol and a copyright notice.   A website, for example, will often contain the website owner’s trademark (registered or unregistered) and a copyright notice.  A novel may have the publisher’s registered trademark and the author’s copyright notice on it.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: USPTO (US Patent & Trademark Office) resources at www.uspto.gov; www.uspto.gov/trademarks/basics/register.jsp; and www.uspto.gov/faq/trademarks.jsp#_Toc275426682 ; US Copyright Office Circular 3 on Copyright Notice at www.copyright.gov/circs/circ03.pdf; US Copyright Office Circular 1 on Copyright Basics at www.copyright.gov/circs/circ01.pdf; @iplegalfreebies and www.kasterlegal.com.